Hours of Service (HOS) of Drivers; Application of American Pyrotechnics Association (APA) for Exemption From the 14-Hour Rule During Independence Day Celebrations |
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Topics: FMCSA
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Pamela M. Pelcovits
Federal Register
May 24, 2011
[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30232-30235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12760]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-28043]
Hours of Service (HOS) of Drivers; Application of American
Pyrotechnics Association (APA) for Exemption From the 14-Hour Rule
During Independence Day Celebrations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of application for exemption; request for comments.
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SUMMARY: The American Pyrotechnics Association (APA) has applied for a
limited exemption from FMCSA's regulation that drivers of commercial
motor vehicles (CMVs) may not drive after the 14th hour after coming on
duty. The exemption would apply solely to the operation of CMVs by 9
designated APA-member motor carriers in conjunction with staging
fireworks shows celebrating Independence Day during the periods June
28--July 8, 2011, and June 28--July 8, 2012, inclusive. During these
two periods, the approximately 375 CMVs and drivers employed by these 9
APA-member motor carriers would be allowed to exclude off-duty and
sleeper-berth time
[[Page 30233]]
of any length from the calculation of the 14 hours. These drivers would
not be allowed to drive after accumulating a total of 14 hours of on-
duty time, following 10 consecutive hours off duty, and would continue
to be subject to the 11-hour driving time limit, and the 60- and 70-
hour on-duty limits. The APA maintains that the terms and conditions of
the limited exemption would ensure a level of safety equivalent to, or
greater than, the level of safety achieved without the exemption.
DATES: Comments must be received on or before June 14, 2011. This
exemption would be effective during the periods of June 28, 2011,
through July 8, 2011, inclusive, and June 28, 2012, through July 8,
2012, inclusive. The exemption would expire on July 9, 2012.
ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2007-28043 by any of the following
methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. In the ENTER KEYWORD OR ID box enter FMCSA-2007-
28043 and click on the tab labeled SEARCH. On the ensuing page, click
on any tab labeled SUBMIT A COMMENT on the extreme right of the page
and a page should open that is titled ``Submit a Comment.'' You may
identify yourself under section 1, ENTER INFORMATION or you may skip
section 1 and remain anonymous. You enter your comments in section 2,
TYPE COMMENT & UPLOAD FILE. When you are ready to submit your comments,
click on the tab labeled SUBMIT. Your comment is then submitted to the
docket; and you will receive a tracking number.
Fax: 1-202-493-2251.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery: West Building, Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal holidays.
Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the ADDRESSES
heading above and the Public Participation heading below. Note that all
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
Please also see the Privacy Act heading below.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time, and in
the ENTER KEYWORD OR ID box enter FMCSA-2007-28043 and click on the tab
labeled SEARCH.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
January, 17, 2008 (73 FR 3316) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The http://www.regulations.gov Web site is
generally available 24 hours each day, 365 days each year. You can
obtain electronic submission and retrieval help and guidelines under
the ``help'' section of the http://www.regulations.gov Web site and
also at the DOT's http://docketsinfo.dot.gov Web site. If you want us
to notify you that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments online.
FOR FURTHER INFORMATION CONTACT: Ms. Christine Hydock, FMCSA Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Telephone: 202-366-4325. E-mail: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 4007 of the Transportation Equity Act for the 21st Century
(Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315
and 31136(e) to provide FMCSA authority to grant exemptions from its
motor carrier safety regulations, including the hours-of-service (HOS)
rules. The procedure for requesting an exemption is prescribed in 49
CFR part 381. FMCSA must publish a notice of each exemption request in
the Federal Register (49 CFR 381.315(a)). The Agency must provide the
public an opportunity to inspect the information relevant to the
application, including any safety analyses that have been conducted,
and to comment on the request. The Agency may grant an exemption for up
to 2 years.
The Agency reviews the safety analyses and public comments and may
grant the exemption if it finds ``such exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption'' (49 CFR 381.305). The
decision of the Agency must be published in the Federal Register (49
CFR 381.315(b)) with the reason for denying the exemption or, in the
alternative, the specific person or class of persons receiving the
exemption, and the regulatory provision or provisions from which the
exemption is granted. The notice must also specify the effective period
of the exemption (up to 2 years), and explain the terms and conditions
of the exemption.
APA Application for Exemption
The HOS rules in 49 CFR 395.3(a)(2) prohibit a property-carrying
CMV driver from driving after the 14th hour after coming on duty
following 10 consecutive hours off duty. APA, a trade association
representing the domestic fireworks industry, has applied for an
exemption from this subsection for 9 of its member motor carriers. A
copy of the application is included in the docket referenced at the
beginning of this notice. A list of the 9 APA motor carriers within the
scope of this exemption request is included as an appendix to this
notice.
APA has also applied for renewal of the exemption granted in 2009
(74 FR 29264, June 19, 2009). The renewal would cover 54 of the 61
member motor carriers listed in the 2009 exemption notice. Information
regarding that request will be published in a separate Federal Register
notice.
The initial APA exemption application for relief from the 14-hour
rule was submitted in 2004; a copy of the application is in the docket.
That application fully describes the nature of the pyrotechnic
operations of the CMV drivers employed by APA-member motor carriers
during a typical Independence Day period. The CMV drivers are trained
pyro-technicians holding a commercial driver's license (CDL) with a
hazardous materials (HM) endorsement. They transport fireworks and
related equipment by CMV on a very demanding schedule, often to remote
locations. After they arrive, the APA driver is responsible for set-up
and staging of the fireworks shows.
In 2009, FMCSA granted this same limited exemption to 14 new APA-
member motor carriers (74 FR 29266, June 10, 2009) and renewed 61
exemptions of APA-member motor carriers (74 FR 29264, June 19, 2009)
for their CMV transportation of fireworks for Independence Day displays
in 2009 and 2010. The Agency is not aware of any adverse safety events
related to APA operations during these periods. APA has now applied for
the same limited
[[Page 30234]]
exemption for 9 additional motor carriers.
APA is seeking this exemption because compliance with the current
14-hour rule by its members during these two 11-day periods would
impose a substantial economic hardship on numerous cities, towns and
municipalities, as well as the APA companies. To meet the demand for
fireworks under the current HOS rules, APA asserts that its member
companies would be required to hire a second driver for most trips. The
result would be a substantial increase in the cost of the fireworks
shows--beyond the means of many of APA's customers--and would deny many
Americans this important component of their Independence Day
celebration.
Method To Ensure an Equivalent or Greater Level of Safety
APA believes that this exemption would not adversely affect the
safety of the motor carrier transportation provided by its members
during the two 11-day periods. According to the APA, the companies that
have operated under the exemption, and subsequent renewals, for the
past six years have done so with no reports of incidents of any kind.
As a condition of holding the exemption, each motor carrier is required
to notify FMCSA within 5 business days of any accident (as defined by
49 CFR 390.5) involving the operation of any of its CMVs while under
this exemption. To date, FMCSA has received no incident notifications.
In addition, the exemption will enhance safety by decreasing the
number of CMVs stationed with 1.1G, 1.3G and 1.4G fireworks aboard at
locations throughout the country. Under the exemption, drivers will be
able to safely return the CMVs to their home base, next display
location or proper storage facility, which are all properly secured
areas for 1.1G, 1.3G and 1.4G fireworks as required by the Bureau of
Alcohol, Tobacco, Firearms and Explosives, and state and local
regulations. APA states that the operational demands of this unique
industry minimize the risk of a CMV crash. During the exemption period,
these drivers transport fireworks over relatively short routes from
distribution points to the site of the fireworks display, and normally
do so in the early morning when traffic is light. At the site, they
spend considerable time installing, wiring, and safety-checking the
fireworks displays, followed by a period of several hours off duty in
the late afternoon and early evening prior to the event. During this
time, the CMV drivers are able to rest and nap, thereby reducing or
eliminating the fatigue accumulated during the day. After the event,
they drive the CMVs to the point of origin. This occurs late in the
evening, and thus avoids heavy traffic. Before beginning another duty
day, these drivers must take 10 consecutive hours off duty which is the
same requirement imposed on other CMV drivers.
APA also argues that the heavy training requirements imposed on
their CMV drivers add to the level of safety achieved. These drivers
are comprehensively trained on proper handling and use of these
products, and receive the training and qualifications required by the
Department of Transportation. Each driver goes through an extensive
training and apprentice program for up to two years before transporting
and operating a fireworks display. In addition, all companies
requesting the exemption have agreed to provide to their drivers
operating under the exemption additional training on the importance of
proper rest periods during the work day, including naps and breaks by
other means.
APA believes that these operations, conducted under the terms and
conditions of this limited exemption, would provide a level of safety
that is equivalent to, or greater than, the level of safety achieved
without the exemption.
Terms and Conditions of the Exemption
Period of the Exemption
APA's request for exemption from the requirements of 49 CFR
395.3(a)(2) would be effective June 28 through July 8, 2011, inclusive,
and from June 28 through July 8, 2012, inclusive. The requested
exemption would expire on July 9, 2012.
Extent of the Exemption
This exemption would be restricted to drivers employed by the 9
companies, firms and entities listed in the appendix to this notice.
The drivers would be entitled to a limited exemption from the
requirements of 49 CFR 395.3(a)(2), which prohibits a driver from
driving after the 14th hour after coming on duty and does not permit
off-duty periods to extend the 14-hour limit. Drivers covered by this
exemption would be able to exclude off-duty and sleeper-berth time of
any length from the calculation of the 14-hour limit. This exemption
would be contingent on each driver driving no more than 11 hours in a
14-hour on-duty period. The exemption would further be contingent on
each driver having 10 consecutive hours off duty following 14 hours on
duty prior to beginning a new driving period. The drivers must comply
with all other requirements of the Federal Motor Carrier Safety
Regulations) (49 CFR parts 350-399).
Preemption
During the periods the exemption would be in effect, no State would
be permitted to enforce any law or regulation that conflicts with or is
inconsistent with this exemption with respect to a person or entity
operating under the exemption.
Notification to FMCSA
Each company, firm and entity listed in the appendix to this notice
would be required to notify FMCSA within 5 business days of any
accidents (as defined by 49 CFR 390.5) involving the operation of any
of its CMVs while under this exemption. The notification must include
the following information:
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or
which is closest to the scene of the accident,
c. Driver's name and driver's license number,
d. Vehicle number and State license number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws,
or motor carrier safety regulations, and
i. The total driving time and the total on-duty time of the CMV
driver at the time of the accident.
Termination
During the exemption periods, FMCSA would retain the authority to
take all steps necessary to protect the public interest, including
revocation of the exemption. Exempt motor carriers and drivers would be
subject to FMCSA monitoring while operating under this exemption. FMCSA
would immediately revoke the exemption for failure to comply with its
terms and conditions.
Request for Comments
Although FMCSA previously requested public comment on the safety
impact of similar APA requests [i.e., for a limited exemption from the
requirements of 49 CFR 395.3(a)(2) for the 2005-2006, 2007-2008, 2009-
2010 Independence Day celebrations and in a notice published on March
25, 2011 (76 FR 16852)], the Agency is required by 49 U.S.C.
31315(b)(4) and 31136(e) to request public comment on all applications
for exemption.
[[Page 30235]]
Due to the fact that this exemption application is specific to the
Independence Day celebrations, FMCSA must obtain, and complete its
review of, comments in time to issue a final determination before the
4th of July holiday. This is not to say that the Agency has prejudged
the outcome of this process, but approval of the application is one
possible result. Granting the exemption after the long holiday weekend
would reduce its value considerably. FMCSA is therefore adopting a
comment period of 21 days instead of the 30 days normally provided. We
do not believe this imposes any particular hardship on potential
commenters, since this application involves the same issues as those
raised by similar exemption applications submitted by the pyrotechnic
industry in previous years. Commenters who have an interest in such
matters are likely to be familiar with the issues and arguments
surrounding a fireworks exemption, and will be able to formulate their
responses within a 21-day comment period.
Therefore FMCSA, in accordance with 49 U.S.C. 31315(b)(4) and
31136(e), requests public comments on APA's recent request for
exemption from the 14-hour rule for the 9 motor carriers listed in the
appendix to this notice. FMCSA will consider all comments received by
close of business on June 14, 2011. All comments will be available for
examination in the docket listed under the ADDRESSES section of this
notice. The Agency will consider to the extent practicable comments
received in the public docket after the closing date of the comment
period.
Issued on: May 19, 2011.
Pamela M. Pelcovits,
Director, Office of Policy Plan and Regulations.
Appendix to the Notice of Application of American Pyrotechnics
Association (APA) for a Limited HOS Exemption for 9 Motor Carriers
During the 2011 and 2012 Independence Day Celebrations
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Motor Carrier Address DOT No.
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1. AM Pyrotechnics, LLC.......... 2429 East 535th Rd., 1034961
Buffalo, MO 65622.
2. Arthur Rozzi Pyrotechnics..... 6607 Red Hawk Ct., 2008107
Maineville, OH 45039.
3. East Coast Pyrotechnics, Inc.. 4652 Catawba River Rd., 545033
Catawba, SC 29704.
4. Fireworks Extravaganza........ 58 Maple Lane, 2064141
Otisville, NY 10963.
5. Hi-Tech FX, LLC............... 1135 Ave. I, Fort 1549055
Madison, IA 52627.
6. North Central Industries, Inc. 1500 E. Washington, 00165755
Muncie, IN 47305.
7. Pyro Spectaculars North, Inc.. 5301 Lang Avenue, 1671438
McClellan, CA 95652.
8. Pyrotechnic Display, Inc...... 8450 W. St. Francis Rd., 1929883
Frankfort, IL 60423.
9. Western Display Fireworks, Ltd 10946 S. New Era Rd., 498941
Canby, OR 97013.
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[FR Doc. 2011-12760 Filed 5-23-11; 8:45 am]
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